Changes to the False Claims Act in Senate Bill 386
Under new legislation, the federal False Claims Act (FCA), will take an even more prominent role in protecting from fraud the increase of federal spending to meet the nation’s financial crisis. With federal funds going to a range of projects– from state infrastructure “shovel ready” road building to Internet connectivity, green energy innovation and high-tech transportation solutions”there are simply more federal expenditures in the pipeline for the FCA to cover.
On May 20, 2009, President Obama signed into law Senate Bill 386, the Fraud Enforcement and Recovery Act (FERA), which makes important amendments to the FCA. Under the new law, bailout-fund recipients’ potential liability under the FCA is increased. The President stressed the importance of protecting taxpayer dollars needed for economic recovery under the Troubled Asset Relief Plan (TARP), run by the U.S. Treasury to shore up financial institutions, and other stimulus programs.
A key amendment in S. 386 is to delete the requirement for a “claim” in 31 U.S.C. § 3729(c), and expand the definition of claim in a new section. The problem the drafters of S. 386 had to overcome was that a claim, as included in § 3729(c), was deemed by some courts as bound by “the rule that a claim requires a request or demand for payment from government funds.” In response, S. 386 excises § 3729(c) and instead defines “claim” to include “any request or demand for money, whether or not the government has title to that money or property, and including situations where the defendant submits the request or demand either directly to the government or to a contractor, grantee, or any other recipient of government funds used to advance a government program.”
As enacted, S. 386 broadens the coverage of current laws against financial crimes, including fraud affecting mortgages, securities, and federal assistance and relief programs. Mortgage lending now unquestionably falls within the purview of the FCA, on the basis of the large federal role in propping up the sub-prime lenders during the current financial crisis.
The bill also addresses recent court decisions, including the 2008 U.S. Supreme Court decision in Allison Engine Co. v. U.S., which narrowly interpreted the scope of the FCA to potentially exclude subcontractors and non-governmental entities from coverage. Importantly, S. 386 revises the liability provisions of the FCA to clarify and reaffirm that whistleblowers’ suits for anti-fraud civil liability reach federal funds spent by non-governmental entities. The common theme in these legislative changes is that the jurisdiction of the FCA is co-extensive with the federal dollars spent to support industries, as through TARP, or by private contractors paid by the Government to run facilities or programs.
Legislative History of S. 386
The legislation moved through Congress on a fast-track, reflecting the importance of the FCA to the Obama administration. Although various iterations of the bill were introduced during the Bush administration, the most recent version of the bill was introduced February 5, 2009, by Senator Patrick Leahy (D-Vermont), Senator Charles Grassley (R-Iowa), and Senator Ted Kaufman (D-Delaware), and referred to the Senate Judiciary Committee. The bill was reported, as amended, by that committee on March 5, 2009, by a voice vote, and subsequently placed on the Senate calendar. On April 28, 2009, the Senate passed the bill by a vote of 92 to 4, showing bi-partisan support. On May 18, 2009, the House amended and passed S. 386 by a count of 338 to 52. The Senate then agreed to the House amendments with one change, to which the House concurred. On May 19, 2009, the bill was presented to the President, and he signed it the following day.
Effect of S. 386 on Mortgage Lending Industry
The nation’s editorial pages have reflected a palpable sense of frustration that such a large financial collapse as occasioned by sub-prime lending would result in few criminal indictments, while bad actors seemingly went untouched by law enforcement and industry regulators. In strengthening the ability of private attorneys general to enforce anti-fraud laws, in S. 386 the FCA was squarely extended to interstate mortgage lenders and other recipients of TARP and economic stimulus funds.
The problem of the doctoring of loan documents was widely noted in the press. Unwitting consumers declared that if they did not qualify for a home loan based on the legitimate credit analysis, the mortgage broker would help fill out the paperwork to make it pass. As stated in a recent U.S. Senate report, shadowy financiers adopted practices that resulted in pushing mortgages on to consumers who could not afford them, so that short term speculators could generate profits by packaging the mortgages into securities sold on Wall Street. As residential home prices dipped, collateralized securities lost value, leading to a spiral of fraud and injury to investors. Accordingly, S. 386 now defines a “false statement” to include mortgage application statements by mortgage brokers, as defined in 18 USC § 1014.
A White House press release explained that S. 386 corrects the problem that many mortgage lenders fell outside existing protections, as follows: “Over 50% of sub-prime mortgages issued as recently as 2005 involved private mortgage institutions and similar entities not currently covered under federal bank fraud criminal statutes. FERA amends the definition of a ‘financial institution’ in the criminal code (18 U.S.C. § 20). This will extend Federal laws to private mortgage brokers and companies that are not directly regulated or insured by the Federal Government.” 
In S. 386, the definition of “financial institution” in 18 USC § 20, para. 10, was amended to include banks and mortgage lenders making “a federally related mortgage loan as defined in section 3 of the Real Estate Settlement Procedures Act of 1974.”
Finally, Section 5 of S. 386 creates a Financial Crisis Inquiry Commission, whose mandate is to investigate the causes of the financial crisis, including the worst practices of the mortgage industry. The Commission will examine the “lending practices and securitization, including the originate-to-distribute model for extending credit and transferring risk,” and will submit a report on its findings by December 15, 2010.
The bill appropriates to the Attorney General the sum of $265 million, “which would go to hire about 160 more FBI agents and 200 more Justice Department prosecutors to work on mortgage fraud cases.” 
Effect of S. 386 on TARP Spending
In remarks made May 20, 2009, at the signing of S. 386, President Obama said that the law: “allows DOJ to prosecute anyone who fraudulently obtains Recovery Act or TARP funds — precious taxpayer dollars we’ve carefully invested in order to turn this crisis around.” 
TARP was created to purchase and insure up to $700 billion of troubled assets held by banks and other financial institutions in an effort to stabilize and otherwise bail out the financial markets. On June 22, 2009, The Office of Management and Budget (OMB) released a memorandum giving guidance on reporting requirements included in Section 1512 of the Recovery Act. Stimulus recipients and subrecipients must report a series of data, including, “names and compensation of the five highest paid employees.” According to the OMB memorandum: “Section 1512 of the Recovery Act requires that prime recipients and delegated sub-recipients submit quarterly reports on their use of the funds not later than the 10th day following the end of each quarter beginning on October 10, 2009, and will be cumulative since enactment, or February 17, 2009.” Reports are entered at the www.FederalReporting.gov website and published at www.Recovery.gov within 30 days of filing.
The Emergency Economic Stabilization Act of 2008, which authorized TARP, established under Section 121 the Office of the Special Inspector General for TARP, which is commonly referred to as SIGTARP. On December 15, 2008, Neil Barofsky was appointed the inspector general, with the authority to “conduct, supervise, and coordinate audits and investigations of the purchase, management and sale of assets” under TARP.
In the initial report to Congress of February 9, 2009, and a letter of January 7, 2008, Barofsky urged the Treasury to include language in all TARP contracts entered into after that date that requires the bank to, at the minimum, account for the use of TARP funds, provide internal controls to ensure compliance with the remainder of the TARP contract, and have a senior officer certify the accuracy of the information provided.
One element of the government’s response to the financial crisis is the Term Asset-backed Securities Loan Facility (TALF) program, in which the Federal Reserve will give non-recourse loans totaling up to $20 billion upon the posting of collateral in the form of newly issued asset-backed securities. Barofsky has stated the need to extend the FCA to the program.
In addition to recipients of government funds facing potential increased FCA liability, private sector contractors and agents providing services to the Treasury in connection with TARP may face increased potential liability under the FCA in connection with new conflict of interest and mandatory disclosure requirements under an interim rule issued by the Treasury. False responses to these inquiries could subject TARP recipients to potential liability under the FCA.
Since the inception of TARP in October 2008, there has been a push for oversight over the use of the funds by recipients. On November 17, 2008, Sen. Grassley suggested that those found to be using TARP funds under false pretenses should be subject to liability under the FCA. The applicability of the FCA to pre-SIGTARP recipients is less certain than to those recipients certifying under SIGTARP requirements to the funds use prior to receiving the funds.
One may assert that false certifications in response to the SIGTARP’s request should not be considered “claims” under the FCA because the TARP funds that are the subject of the certifications were distributed before requirements as to their use were imposed. But one could argue in reply that funds already distributed are subject to the FCA if there was: (1) an express or implied condition on the recipient to use the funds for a specific purpose; and (2) an express or implied obligation to return the funds if the condition of use was violated.
The case for FCA liability with respect to new TARP distributions is considerably stronger as the funds are typically not distributed by the government until after the letter of intent is submitted. Recipients should expect that the U.S. Department of Justice and/or private whistleblowers will argue that the false certification was material to the payment decision to release the funds, subjecting the entire amount to trebling of the government’s loss, plus penalties.
S. 386 More Clearly Extends FCA to Government Contractors and Subs
The effect of S. 386 on the mortgage industry and TARP spending are weighty enough. But S. 386 also resolves problems in three of four recent cases under debate.
The key change in Section 4 of S. 386 is to the definition of “claim.” The Senate Report explains the significance of the change, as follows:
By removing the offending language from section 3729(a)(1), which requires a false claim be presented to ‘an officer or employee of the Government, or to a member of the Armed Forces,’ the bill clarifies that direct presentment is not required for liability to attach. This is consistent with the intent of Congress in amending the definition of ‘claim’ in the 1986 amendments to include ‘any request or demand * * * for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded.’ 31 U.S.C. Sec. 3729(c) (2000).
Further, the change to the definition of claim makes clear the FCA extends to funds administered by the United States, as follows:
False claims made against Government-administered funds harm the ultimate goals and U.S. interests and reflect negatively on the United States. The FCA should extend to these administered funds to ensure that the bad acts of contractors do not harm the foreign policy goals or other objectives of the Government. Accordingly, this bill includes a clarification to the definition of the term ‘claim’ in new Section 3729(b)(2)(A) and attaches FCA liability to knowingly false requests or demands for money and property from the U.S. Government, without regard to whether the United States holds title to the funds under its administration.
The statute removed the FCA’s “by the Government” limitation and the “to get” verbiage in section 3729(a)(2). The same amendments are made to parallel language in sections 3729(a)(3) and (a)(7). The excised, narrow terms are replaced in the statute with “material,” in a new Section 3729(a)(1)(B), which now imposes liability for knowingly making or using a false record or statement material to a false or fraudulent claim. The definition of “material” is amended to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.”
These changes solve the narrow interpretations of the FCA presented in the three cases discussed next. The fourth case at issue addressed the public disclosure bar. A companion bill, H.B. 1788, limited to the Department of Justice the ability to invoke the public disclosure bar, an idea to remove a perceived disincentive for relators to report fraud and abuse. That provision was not included in S. 386.
In a floor statement, Senator Grassley noted that the legislation would close a loophole in the law as a result of the decision in Allison Engine Co. v. U.S. ex rel. Sanders, 123 S. Ct. 2128 (2008). In Allison Engine, the Supreme Court limited liability to fraudulent statements that were specifically connected to government funds and designed “to get” false claims paid or approved by the government. For example, as opined by Justice Alito, the sub-contractor’s false invoice was passed up the chain by the prime contractor to justify a payment by the government, the FCA applied. If, instead, the prime contractor, or sub-contractor above a lower sub-contractor, had a fixed amount of money, and paid the false claim from that pool of funds, the FCA would not apply.
The amendment to the provision in the bill that corresponds to section 3729(a)(2) would specifically apply retroactively to all claims pending as of June 7, 2008, which is the date of decision of Allison Engine.
The question may arise: is there a sufficient nexus between federal funds and private industry to apply the FCA? For example, the federal government has ploughed billions into General Motors, and so litigation may assert that the FCA applies to that company. Section 4 of S. 386 limits liability to the funds provided by the government “to be spent or used on the Government’s behalf or to advance a Government program or interest.”
In a letter of April 21, 2009, from the U.S. Chamber of Commerce and allied business groups, to the U.S. Senate, the argument was advanced that S. 386 was unnecessary due to recent appellate reversals of two of the cases of concern. The business groups wrote: “More fundamentally, we believe that recent court decisions have also eliminated the need for any changes to the Act. The two key precedents that Section 4 of the legislation was designed to overturn ” Custer Battles and Totten ” have been reversed. Specifically, the 4th Circuit recently reversed the Custer Battles decision, and the Supreme Court’s Allison Engine decision overturned the ‘presentment’ requirement identified in the [U.S. ex rel. Totten v. Bombardier Corp.] case.”
On April 10, 2009, in U.S. ex rel. DRC, Inc. v. Custer Battles, LLC, the Fourth Circuit reversed the district court’s interpretation of “claim.” In that case, a relator alleged that a contractor submitted false claims to the Coalition Provisional Authority (CPA) in Iraq. The District Court for the Eastern District of Virginia, in U.S. ex rel. DRC, Inc. v. Custer Battles, LLC, dismissed the claims, reasoning that the CPA was a private contractor and the nexus to the federal government too tenuous.
Reversing on this point of law, on appeal the Fourth Circuit held that the contractor’s fraudulent demand for payment from CPA was a claim within the meaning of the FCA. The court wrote: “Section 3729(c) does not define a ‘claim’ in relation to the obligation of the United States government but rather to the provision of United States funds.”
In the earlier case, U.S. ex rel. Totten v. Bombardier Corp., a relator brought a qui tam action against contractor under the FCA for allegedly submitting false claims to the National Railroad Passenger Corporation (Amtrak) to obtain payment for allegedly defective railroad cars. The trial court dismissed the case. In an opinion by circuit Judge John Roberts, now Chief Justice of the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia affirmed the lower court’s dismissal. Under the FCA, Amtrak is not a governmental entity, so the presentation of false claim to Amtrak was not a presentation to the federal government, the appeals court ruled. The U.S. Supreme Court in Allison Engine rejected the direct presentment requirement, and so Totten is not considered good law. Nevertheless, Congress felt it sufficiently important to clarify in S. 386 the language of the statute that the provenance of government funds, not the status of private contractor, is the key to the scope of the FCA.
Regarding the public disclosure bar, H.B. 1788, a parallel bill to S. 386, had sought to undo the ruling in U.S. ex rel. Stone v. Rockwell Int’l Corp.. In Rockwell Int’l, the Supreme Court held that the qui tam whistleblower was barred from receiving a share of any money recovered because under the “public disclosure bar” the whistleblower was not an original source with “independent knowledge of the information on which the allegations are based.” Senator Grassley noted that Rockwell provides a disincentive for a whistleblower to bring a case, even if the Justice Department is overloaded or does not chose to bring the case. The proposed language in H.B. 1788, which was not included in S. 386, would have eliminated the procedural uncertainties by requiring the Justice Department to file a timely motion to dismiss claims that violate the “public disclosure bar.”
Finally, S. 386 also carves out an exception to the seal provision to allow sharing of evidence with state and local government law enforcement authorities. Section 4(e) of S. 386 amends 31 USC § 3730(h), to permit the sharing of sealed case files to enable state or local government officials to evaluate taking co-plaintiff status as intervenors. Obviously, the change is important for projects in which federal funding is intermingled with state and local funds, as is the case in many of the new stimulus spending activities.
The provisions of S. 386 make important changes to the FCA that expand its powers to new arenas of interstate mortgage lending and TARP spending, and clarify jurisdictional questions raised by Allison Engine and related cases. The rapid adoption of the bill shows the appetite in Congress for protecting the large federal stimulus expenditures from fraud and abuse. With adoption of S. 386, the role of relators, as private attorney generals, is more important than ever. From false statements on mortgage applications, to fraud in TARP-funded programs, the FCA is front and center in providing effective incentives for whistleblowers to come forward and explore the merits of potential litigation.
* Mr. Guttman is a founding partner with the law firm of Guttman, Buschner and Brooks PLLC, a leading litigation boutique located in Washington, D.C., representing whistleblowers in False Claims Act cases, and shareholders in securities litigation and corporate governance matters nationally.